The Green Card Gamble

Legal entry into the US always means acquiring a “Green Card” immigration document. One of the least painful methods for many is marriage, which wasn’t even an option for LGBTQ couples until 2004 when Massachusetts began offering marriage licenses. In 2015, a Supreme Court decision made marriage equality the law in all 50 states.

The time-honored “apply and wait” system guarantees the longest wait from application to acceptance, and requires proof of income, proof of family status (single or married with children), and other markers of reliability that show you will not become a welfare case the moment you step onto American soil. The most contentious method to get a Green Card in our current system is to seek asylum from a life-threatening situation. There are other ways that immigrants are accepted, such as when the US happily welcomed Jewish scientists fleeing Nazi Germany. Special skills and international fame can easily bend the rules.

In the case of marriage between an American citizen and an immigrant, the American spouse petitions the United States Citizenship and Immigration Services (USCIS) for their spouse. In addition to the written application, the couple are subject to a rigorous personal interview to determine if their relationship is not simply a subterfuge to help the prospective immigrant enter the country. Immigration lawyers carefully prepare these clients for their interview, and YouTube is replete with how-to interview videos.

Marriage requirements differ from state to state, but there is no federal law that bans undocumented immigrants from marrying a US citizen. The couple are subject to all the same documentary evidence as any other couple marrying in that state. Proof of immigrant status is not a requirement. But a marriage license does not mean a Green Card will be granted. The prospects are complicated, and it would be wise to seek the advice of an experienced immigration attorney.

Houston immigration attorney John Nechman advises, “If an undocumented immigrant has been dating a US citizen and it’s a serious relationship, now is the time to start thinking about whether that’s the person you want to be married to. You have an option to get your legal status through that individual, but we don’t know if that will be always be an option. Right now, the Biden administration has been very pro-immigration. They have been approving marriage-based cases for Green Cards in the fastest time period I’ve ever seen as an attorney in my 30 years of practice.”

Primarily, for immigrants claiming asylum, the case just needs to make sense. Suppose an LGBTQ student from Uganda is in the US on a student visa. During the time they have been in the US, the government and laws in Uganda have changed. That country is now known for its ruthless “Kill the Gays” laws. Clearly, this person’s life would be endangered by returning home.

These days, the political upheaval south of the border—especially the problems with gangs that force young men into membership—means that asylum seekers are arriving in large numbers. Nechman has seen cases filed with the Asylum Office take years before an interview is granted because the office is so backlogged.

When a person is given a “credible fear” interview, where they explain why they fear being sent back to their country, they are given a chance to present their case to a jury. That interview is usually about 25 transcribed pages. A bond is set, and if the bond can’t be paid, the immigrant is sent to a detention center.

“When I visit clients,” Nechman says, “the centers seem just like jails. The bonds are seldom reasonable. One judge might set a $25,000 bond and another judge might give a $5,000 bond. Some people have no ability to pay.

“Unfortunately,” Nechman continues, “many people coming across the southern border from Honduras or El Salvador or Guatemala have a lot of reasons to say ‘I’m scared.’ But immigrants have to prove that the government of their country is actively searching or looking for them, and would cause them harm if they returned. The Trump administration made it so those cases were just going to be automatic denials, as a way to give less incentive to people to come up to the US. And so when Trump comes back into office in January, we expect they’re going to make getting asylum grants much harder.”

Undocumented immigrants can rely on some US constitutional rights such as due process (a fair hearing), equal protection, free speech, freedom from unreasonable search and seizure, and the right to counsel (although not a government-appointed attorney).

People seeking to enter the country illegally don’t all arrive on foot at the border. “Someone flying into Houston on an international flight and is held by immigration for questions before they’re allowed into the US are not considered in the US yet,” Nechman explains. “They can be detained and they can be placed on a flight and sent back to their home country. Generally, they are not allowed the right to counsel at that point.”

Not everyone agrees that our border laws should be rigidly enforced. A famous actor who has routinely hired illegal immigrants on his Texas ranch—and pays them a living wage—has famously said, “Borders are arbitrary boundaries set by wars.”

Houston immigration attorney John Nechman is getting calls from people who voted for Trump, but they know a “good” immigrant and want to pay attorney fees to keep them here. “They think I can wave a magic wand and make people legal. But any roadblocks that people can put in the way of the Trump administration might provide some protection against removal.”

 Immigrants who have managed to evade deportation and continue to live in the US live a life of anxiety and mistreatment. They are not allowed to obtain a Social Security number, driver’s license, or receive government welfare. Americans often hire people who are undocumented because they can do so for much less than going through all the steps of hiring a US citizen. Such cases often involve workers such as the “live-in maid” who has long hours, low pay, and few days off. Other undocumented workers accept far worse conditions. Houston immigration attorney Ana Maria Schwartz knows young men who mow lawns and may sleep 20 to a room. Often, she says, they are not even paid minimum wage and are targeted on Friday afternoons when thieves know they will be carrying the cash from their weekly pay. Most often, these immigrants never report being robbed to the police.

Houston immigration attorney Ana Maria Schwartz advises, “Check online reviews, find out their qualifications and how long they have been in practice. See what their specializations are. It’s generally better to not go to a ‘billboard’ or ‘Tik Tok’ attorney.”

Low-income immigrants can find help from the Houston Immigration Legal Service Collaborative, which has an Immigrant Legal Services Hotline at 833-468-4664. Their vast website also has information about a variety of immigration services offered by charities.  houstonimmigration.org

The City of Houston’s Office of New American and Immigrant Communities has online resources.  houstontx.gov/na

The Trans Legal Aid Clinic Texas can help transgender and nonbinary immigrants who wish to change their names and/or gender markers. translegalaidtx.com

Immigration Glossary:

Anchor Baby
A child born in the United States with immigrant parents. Though the child is a US citizen by being born in the US, the parents must meet the same qualifications as any immigrant. Though deported parents may leave their citizen child in the US with friends or relatives, they most frequently choose to take the child with them. If they simply abandon their child, the child is put up for adoption.

Asylum
In the US, asylum is based on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the United States Refugee Act of 1980. To apply, an immigrant must prove that they have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. An immigrant must apply for asylum within one year of entering the US, with or without documentation.

Citizenship
Citizenship is open to Green Card holders, people born in American Samoa or Swains Island, children born abroad to US citizen parents, refugees and asylees, and some long-term residents in the US who have close ties to the country. The naturalization process involves completing an application, attending an interview, and passing tests on English language proficiency and US civics. The applicant must also have lived in the US for at least five years.

Credible Fear Interview
Asylum officers conduct interviews when immigrants are subject to expedited removal and they tell Customs and Border Protection (CBP) or ICE that they intend to apply for asylum; they fear persecution or torture; or they fear returning to their country. If they say they intend to apply for asylum, fear persecution or torture, or fear return, the Department of Homeland Security (DHS) will provide them with information about the “credible fear” process. DHS may detain them during this credible fear process.

Dreamers
Dreamers are non-citizens who were brought into the US as children, at an age when they did not have the ability or right to make their own decisions. They are currently protected if they applied for Deferred Action for Childhood Arrivals (DACA). This legislation has been frequently challenged, and its future remains uncertain. In some cases, these immigrants may be eligible for Green Cards through the normal process of obtaining Green Cards.

Green Card
Officially known as a Permanent Resident Card, the Green Card is a document issued by the United States Citizenship and Immigration Services. It serves as proof that a person has been granted permanent resident status in the US. It allows a person to live and work permanently in the US, as well as to travel outside the country and re-enter as a resident. In order to keep the Green Card active, the holder has restrictions about how long they may remain outside the US each time they exit. The Green Card can be attained through family sponsorship, employment sponsorship, and refugee or asylum status. Holding a Green Card is not the same as citizenship, so holders can apply for citizenship after living in the US for five years and passing a citizenship test.

Passport
A document obtained from the country that a person lives in, generally provided by the passport agency of that country’s state department. One must provide proof of citizenship, a form of identification, a recent color photo, a completed application form, and payment of fees. A passport allows for international travel and includes the holder’s personal information, photograph, and other identifying information. Passports can usually be obtained within a matter of weeks.

Visa
A document issued by the government of the country that a person wants to visit for a specific purpose, such as tourism, business, study, work, or transit. The visa typically specifies the length of time the person is allowed to stay in the country and any restrictions on their activities while there. Depending on the type of visa sought, an applicant will have to provide specific information, pay fees, or possibly sit for an interview. Visas are obtained through an embassy or consulate. Obtaining a visa does not, however, guarantee entry into another country. When a visa holder arrives at a port of entry such as a harbor, train station, airport, or border crossing, immigration officials make the final decision whether or not the visa holder will be allowed to enter. If a visa holder’s situation changes, they can ask for an extension of time or a change to a different visa status. If a person overstays their visa by 180 days and then leaves the country, they are banned from re-entering for three years. If they overstay by one year and then leave the country, they are banned for ten years.